Full Statute Name: Environmental Crimes Law of Brazil (1999)

This law of Brazil seeks to protect wildlife and plants of the country, particularly endangered species.

Statute Text:

Chapter I

General Provisions

Art 1 - (VETOED)

Art 2 - Whosoever, in any way, contributes to the practice of the crimes foreseen in this Law, incurs the stipulated penalties, to the extent of his culpability, as well as the director, the administrator, the member of a board or of a technical agency, the auditor, the manager, the agent or the mandatory of a legal entity who, knowing of the criminal conduct of another, fails to stop its practice, when he could act to avoid it.

Art. 3 - Legal entities will be administratively, civilly and criminally responsible, according to that provided for in this Law, in the instances where violation is committed by decision of its legal or contractual representative or of its collective body, in the interest, or to the benefit, of the entity.

Sole Paragraph. The responsibility of legal entities does not exclude that of individuals, authors, co-authors or participants of the same fact.

Art 4 - The legal entity can be disregarded whenever its standing becomes an obstacle to refunding the damages caused to the environmental quality.

I - the crime is without malice or when imprisonment for up to four years is applied;

II - the culpability, background, social behavior and the personality of the condemned person, as well as the motives and the circumstances of the crime, indicate that the substitution is sufficient for purposes of condemning and preventing the crime.

Sole Paragraph. The penalties which circumscribe rights referred to in this Article, will have the same duration as the substituted imprisonment.

Art. 8 - The penalties which circumscribe rights are:

I - community services;

II - temporary suspension of rights;

III - partial or total suspension of activities;

IV - disbursement;

V - house arrest.

Art. 9 - Community services consists in mandating the condemned to unpaid work in public gardens and parks, and in Conservation Units; and in the case of damage to private or public property, if possible, in its restoration.

Art 10 - Penalties of temporary suspension of rights are: prohibiting the condemned from undertaking contracts with the Government, prohibiting receipt of fiscal benefits or any other benefits, as well as from participating in bidding processes, for a period of five years in the case of fraudulent crimes and, three years in the case of crimes without malice.

Art 11 - Suspension of activities shall be applied when they are not complying with the legal prescriptions.

Art 12 - Disbursement consists of a cash payment to the victim, or to the public or private entity of social purpose, in the amount determined by the judge, of not less than one nor more than three hundred and sixty minimum wages. The amount paid will be deducted from the amount of any civil indemnity which the transgressor was sentenced to pay.

Art 13 - House arrest is based on the self-discipline and on the sense of responsibility of the condemned, who, without being supervised, will have to work, to attend classes or to pursue any authorized activity, remaining at home or at any other place defined as his usual residence, on days and times off, in accordance with that established in the sentence.

Art 14 - The circumstances, which attenuate the penalty, are:

I - the agent's low instruction or schooling level;

II - the transgressor's regret, manifested by the spontaneous reparation of the damage caused or significant limitation of the environmental degradation caused;

III - prior communication by the agent of an imminent risk of environmental degradation;

IV - cooperation with the agents in charge of environmental monitoring and control.

Art 15 - The circumstances which aggravate the penalty, when they are not themselves a crime or are not qualifying a crime, are:

I - recurrence of environmental crimes;

II - if the agent committed the crime:

in order to obtain monetary advantage;

by coercing another to execute the violation;

by affecting or endangering public health or the environment in a serious manner;

by contributing to damages to property of others;

by affecting Conservation Units areas or areas subject to a special usage regimen by a Government Act;

by affecting urban areas or any other human settlements;

in the moratorium season of the fauna;

on Sundays or holidays;

at nights;

in periods of droughts or floods;

within the specially protected territory;

by using cruel methods to kill or capture animals;

by defrauding or abusing trust;

by abusing the right of the environmental license, permission or authorization;

in the interest of a legal entity which is partially or totally supported by public funds or benefits from tax incentives;

by risking the life of endangered species, listed in the competent authorities' official report;

facilitated by a civil servant in the exercise of his duties.

Art 16 - In the crimes foreseen by this Law, the conditional suspension of the penalty can be applied in instances of sentencing to imprisonment of not more than three years.

Art 17 - Verification of the reparation, referred to in Paragraph 2 of Article 78 of the Penal Code, shall be carried out by means of a report on the reparation to environmental damage, and the conditions to be imposed by the judge shall be related to the protection of the environment.

Art 18 - The fine shall be calculated in accordance with the Penal Code criteria; if it is revealed to be inefficient, even if the maximum value is applied, it may be increased up to three times, considering the economic advantage obtained.

Art 19 - The expert's report for the confirmation of the environmental damage shall, whenever possible, determine the amount of the damage inflicted, for purposes of bail and calculation of fines.

Sole Paragraph. The expert's report produced during the police or private inquest may be used in the penal process, by initiating a contradictory plea.

Art 20 - The conviction sentence shall whenever possible determine the minimum amount for reimbursement of the damages caused by the violation, considering the injuries suffered by the offended individual or by the environment.

Sole paragraph. As the condemning sentence enters into force, its execution shall come into effect for the amount fixed as provided for in the chapeau, without any prejudice of the liquidation to verify the damage that has effectively taken place.

Art 21 - The penalties susceptible to being applied singly, cumulatively or alternatively to legal entities, in accordance to that provided for in Article 3, are:

III - prohibition from undertaking contracts with the Government, as well as, to receive subsidies, subventions or donations from it.

§ 1 - The suspension of its activities will be applied when these do not comply with legal or normative provisions related to environmental protection.

§ 2 - The interdiction will be applied when the establishment, work or activity is functioning without the appropriate authorization or contradicting the existing one or violating a legal or normative provision.

§ 3 - The prohibition to be contracted by the Government and to obtain from it subsidies, subventions or donations cannot exceed the period of ten years.

Art. 23 - Community services by the legal entity shall consist of:

I - financing environmental programs and projects;

II - performing recovery works in degraded areas;

III - maintaining public areas;

IV - contributing to public environmental or cultural entities.

Art 24 - The legal entity preponderantly constituted or utilized to permit, facilitate or hide the practice of a crime defined by this Law, shall have adjudged its forced liquidation; its assets will be considered instrument of the crime, and as such, will be transferred to the National Penitentiary Fund.

Chapter III

Apprehension of the Product and the Instrument of Administrative Violation or Crime

Art 25 - Upon verification of an violation, its products and instruments will be apprehended, by registering the violation in the respective legal proceedings.

§ 1 - Animals will be set free in their habitat or be given to zoos, foundations or similar entities, as long as they remain under the responsibility of qualified technical personnel.

§ 2 - If perishable products or timber are concerned, they will have to be evaluated and donated to scientific institutions, hospitals, prisons and other similar entities.

§ 4 - The instruments used to commit the violation, shall be sold, and their characteristics removed by recycling.

Chapter IV

Penal Action and Process

Art. 26 - In the penal violations foreseen by this Law, penal action is public unconditioned.

Sole Paragraph. (VETOED).

Art. 27 - In environmental crimes of lesser offensive potential, the proposal for an immediate application of circumscription of rights or a fine, as foreseen in Article 76 of Law No. 9,099, dated September 26, 1995, can only be formulated if a prior composition of the environmental damage has been carried out, as provided for Article 74 of the same Law, unless there is proven impossibility.

Art. 28 - The provisions of Article 89 of Law No. 9,099, dated September 26, 1995, are applied to the crimes of lesser offensive potential defined by this Law, with the following modifications:

I - the statement of punishment termination, dealt with in Paragraph 5 of the article referred to in the chapeau, will depend on the evidence report to ascertain repair of the environmental damage, with the exception of the impossibility foreseen in Clause I of Paragraph 1 of the same article;

II - in the case where the report proves that reparation has not been complete, the suspension period of the process will be extended up to the maximum period foreseen in the article mentioned in the chapeau, increased by one year with suspension of the prescription period;

III - during the extended period, the conditions stated in Clauses II, III and IV of Paragraph 1 of the article mentioned in the chapeau, shall not be applied;

IV - at the end of the extended period, a new report will be made to register the reparation of the environmental damage, according to which, the suspension period may be extended for a period up to the maximum foreseen in Clause II of this article, in compliance with that provided for in Clause III;

V - on termination of the maximum extension period, the statement of punishment termination will depend on whether the report proves that the transgressor has taken the measures required to repair the damage completely.

Chapter V

Crimes against the Environment

Section I

Crimes against Fauna

Art. 29 - To kill, pursue, hunt, catch, use species of the wildlife animals, native or on migratory routes, without the appropriate permission, license or authorization from the competent authority or in disagreement with the permission, license or authorization obtained:

Penalty -detention of six months to one year, and fine.

§ 1 - The following incur the same penalties:

I - whoever obstructs fauna procreation without the appropriate license or authorization or in disagreement with the obtained license or authorization;

III - whoever trades, puts up for sale, exports or acquires, keeps in captivity or in warehouses, uses or transports eggs, larva or species of the wildlife animals, native or on migratory routes, as well as products or objects derived from it, from a non-authorized breeding area or without the appropriate permission, license or authorization from the competent authority.

§ 2 - In the case of domestic guardianship of wildlife species which are not considered endangered, the judge may, depending on the circumstances, not apply the penalty.

§ 3 - All species belonging to native species, migratory and any other, water or land based, which have all or part of their life cycle taking place within the Brazilian territory or in the Brazilian jurisdictional waters, are considered to be wildlife animal species.

§ 4 - The penalty is increased by half, if the crime is committed:

I - against rare species or those considered endangered, even if only at the site of violation;

II - in the period in which hunting is prohibited;

III - during the night;

IV - by abusing the license;

V - within a conservation unit;

VI - by using methods or instruments capable of provoking mass destruction.

§ 5- The penalty is increased up to three times if the crime occurs during professional hunting.

§ 6 - The provisions of this article do not apply to fishing.

Art. 30 - To export unfinished skins and hides of amphibians and reptiles without the authorization of the competent environmental authority:

Penalty - imprisonment of one to three years and fine.

Art. 31 - To introduce animal species in the country without a favorable official technical report and a license given by the competent authority:

I - explosives or substances which, in contact with the water, produce similar effect;

II - toxic substances or other means forbidden by the competent authority:

Penalty - imprisonment of one to five years.

Art. 36 - For the purposes of this Law, fishing is considered to be every act intending to remove, extract, gather, catch, apprehend or capture species of fish, crustaceans, mollusk and hydro-bio vegetables, which are susceptible or not to economic use, with the exception of endangered species, listed in the official fauna and flora lists.

Art. 37 - It is not considered a crime to kill an animal when it is carried out:

I - in the case of need, to satisfy the hunger of the agent or that of his family;

II - to protect agriculture, orchards and herds from predatory or destructive action by animals, if express and legal authorization is issued by the competent authority;

III - (VETOED).

IV - because the animal is dangerous, if it has been so characterized by the competent agency.

Section II

Crimes against flora

Art. 38 To destroy or damage forest considered to be a permanent preservation forest, even if under formation, or use it infringing protection norms:

Penalty - detention of one to three years or fine, or both penalties cumulatively.

Sole Paragraph. If crime is without malice, the penalty will be reduced by a half.

Art. 39 To log in forests considered to be permanent preservation forests, without permission from the competent authority:

Penalty: detention of one to three years, or fine, or both penalties cumulatively.

Art. 40 To inflict direct or indirect damage to Conservation Units and to the areas dealt with in Article 27 of Decree No. 99724, dated June 6, 1990, independently of their localization:

Penalty: imprisonment from one to five years.

§ 1. Conservation Units are defined as Biological Reserves, Ecological Reserves, Ecological Stations, National, State and Municipal Parks, National, State and Municipal Forests, Environmental Protection Areas, Areas of Relevant Ecological Interest and Extractive Reserves or others to be created by the Government.

§ 2. Occurrence of damage affecting endangered species within the Conservation Units will be considered aggravating circumstances for purposes of determining the penalty.

§ 3. If the crime is without malice, penalty will be reduced by half.

Art. 41 To provoke fire in woods or forest:

Penalty - imprisonment from two to four years and fine.

Sole Paragraph. If crime is without malice, the penalty is detention from six months to one year and fine.

Art. 42 To manufacture, sell, transport or release fire balloons that could cause fire in forests and all other forms of vegetation, in urban areas or in any type of human settlement:

Penalty - detention, from one to three years, or fine, or both penalties cumulatively.

Art. 43 (vetoed)

Art. 44 To Extract stones, sand, lime or any type of mineral from publicly owned forests or those considered permanent preservation forests, without prior authorization:

Penalty - detention, from six months to one year and fine.

Art. 45 To cut or transform into charcoal noble timber, as defined by Executive Act, for industrial, energetic purposes or any other exploitation, economic or otherwise, in disagreement with legal determinations:

Penalty - imprisonment, for one to two years and fine.

Art. 46 To receive or acquire, for commercial or industrial purposes, timber, fuelwood, charcoal or other plant based products, without requiring presentation of the vendor's license, granted by the competent authority, and without having the copy which should accompany the product until final processing:

Penalty - detention, from six months to a year and fine.

Sole Paragraph. The same penalty is incurred by whoever sells, offers for sale, has in storage, transports or keeps timber, fuelwood, charcoal and other plant based products, without a valid license for the whole period of travel or storage, granted by the competent authority.

Art. 47 (VETOED)

Art. 48 To preventing or jeopardize natural regeneration of forests and all other forms of vegetation:

Penalty - detention, from six months to one year and fine.

Art. 49 To destroy, damage, injure or mistreat, by any manner or means, ornamental plants from public places or in private properties belonging to others:

Penalty - detention, from three months to one year, or fine, or both penalties cumulatively.

Sole Paragraph. In crime without malice, the penalty is from one to six months, or fine.

Art. 50 To destroy or damage native or planted forests or vegetation which fixates dunes or protects mangroves, particular object of preservation:

Penalty - detention, from three months to one year, and fine.

Art. 51 To trade in power saws, or use them in forests and on all other types of vegetation, without license or register from the competent authority:

Penalty: detention, from three months to one year, and fine.

Art. 52 To enter into Conservation Units carrying substances or instruments appropriate for hunting or exploitation of forest products or subproducts, without license from the competent authority.

Penalty: detention, from six months to one year, and fine.

Art. 53 For the crimes foreseen in this Section, the penalty is to be increased by one sixth to one third if:

I - a result of the fact is the decrease of natural waters, soil erosion or modification of climatic regime;

II - the crime is committed:

a) during the period of seed dispersion;

b) during the period of vegetation formation;

c) against rare or endangered species, even if the threat occurs only at the site of the crime;

d) during times of flooding or drought;

e) during the night, on Sundays and holidays.

Section III

Pollution and other environmental crimes

Art. 54 To cause pollution of any nature at such level that it results or could result in damage to human health, or that it could cause death of animals or significant destruction of flora:

Penalty - imprisonment of one to four years, and a fine.

§ 1 - If the crime is without malice:

Penalty: detention for six months to one year, and a fine.

§ 2 - If the crime:

I - renders a rural or urban area unsuitable for human occupation;

II - causes air pollution that results in departure of the affected area's inhabitants, even if momentarily, or causes direct damage to the population's health;

III - causes water pollution so that it is necessary to interrupt public water supply in a community;

IV - hinders or prevents public access to beaches;

V - occurs due to casting of solid, liquid or gaseous wastes, or debris, oils, or oily substances contrary to that established in laws or regulations:

Penalty - imprisonment of one to five years;

§ 3 -Whoever does not adopt precautionary measures required by competent authorities in cases of serious or irreversible environmental damage incurs the same penalties provided for in the previous paragraph.

Art. 55 - To carry out research, mining or extraction of mineral resources, without the competent authorization, permission, concession or licensing or differing from the granted authorization, permission, concession or license:

Penalty - detention for six months to one year, and a fine.

Sole Paragraph. Whoever does not recover the researched or exploited area, as established in the authorization, allowance, permission, license, concession or determination of the competent agency will incur the same penalties.

Art. 56 To produce, process, package, import, export, trade, supply, transport, store, keep, have in warehouse or to use products or substances that are toxic, dangerous or noxious to human health or to the environment, contrary to the requirements established in laws or regulations :

Penalty - detention for one to four years, and a fine.

§ 1 - Whoever abandons the products or substances mentioned in the chapeau, or uses them contrary to safety norms incurs the same penalties.

§ 2 - If the product or the substance is nuclear or radioactive, the penalty will be increased by a sixth to a third.

§ 3 - If it is a crime without malice:

Penalty - detention for six months to one year, and a fine.

Art. 57 (VETOED).

Art. 58 In the fraudulent crimes provided for in this Section, the penalties will be increased:

I - by one-sixth to one-third, if the crime results in irreversible damage to flora or to the environment in general;

II - by one-third to one half, if the crime results in serious physical damage to another;

III - up to double, if the crime results in the death of another.

Sole Paragraph. The penalties foreseen in this article shall only be applied if no other more serious crime arises from the fact.

Art. 59 (VETOED).

Art. 60 To build, reform, enlarge, install or put to work, anywhere in the national territory, establishments, works or potentially contaminating services, without license or authorization of the competent environmental agencies, or contrary to relevant legal and regulatory norms:

Penalty - detention of one to six months, or a fine, or both penalties cumulatively.

Art. 61 - To disseminate disease or plague or species that may cause damage to agriculture, cattle raising, fauna, flora, or to ecosystems:

Sole Paragraph. If it is a crime without malice, the penalty is detention of six months to one year, without prejudice to the fine.

Art. 63 To change the appearance or structure of a building or site specially protected by law, administrative act or judicial decision, because of its landscape, or ecological, touristic, artistic, historical, religious, cultural archaeological, ethnographic or monumental value, without authorization of the competent authority or differing from the granted authorization:

Penalty - one to three years imprisonment and a fine.

Art. 64 To build on a an area on which construction is not permitted, or on its surroundings, because of its landscape, ecological, touristic, artistic, historical, cultural, religious, archaeological, ethnographic or monumental value, without authorization of the competent authority or differing from the granted authorization:

Penalty - detention of six months to one year imprisonment.

Art. 65 To paint graffiti or defile by any other means urban buildings or monuments:

Penalty - detention of three months to one year and a fine.

Sole Paragraph. If the act is carried out on protected monument or object because of its artistic, archaeological or historical value, the penalty is detention from six months to one year and a fine.

Section V

Crimes against environmental administration

Art. 66 Civil servants making a false or deceitful statements, omitting the truth, or withholding information or technical-scientific data in environmental authorization or licensing procedures:

Penalty - one to three years imprisonment and a fine.

Art. 67 Civil servant granting license, authorization or permission contrary to environmental norms, for activities, works or services, the accomplishment of which depends on an authorization act from the Government:

Penalty - detention of one to three years and a fine.

Sole Paragraph. If the crime is without malice, the penalty is detention for three months to one year, without prejudice of the fine.

Art. 68 Omission of compliance with an obligation of relative environmental interest by whoever has the contractual or legal duty to do so:

Penalty - detention of one to three years and a fine.

Sole Paragraph. If the crime is without malice, the penalty is three months to one year, without prejudice of the fine.

Art. 69 To prevent or hinder the Governments monitoring actions in environmental issues:

Penalty: detention of one to three years and a fine.

CHAPTER VI

Administrative Violation

Art. 70 Environmental administrative violation is considered to be every action or omission, which violates the legal norms on use, enjoyment, promotion, protection and recovery of the environment.

§ 1 - Competent authorities to register an environmental violation, and to initiate an administrative proceedings, are those employees of environmental agencies that are part of SISNAMA - the Brazilian National Environment System, who are designated to monitoring actions, as well as the agents of the Port Authorities of the Ministry of the Navy.

§ 2 - Any person, who verifies an environmental violation, can notify the authorities mentioned in the previous paragraph, in order that they may exert their functions.

§ 3 - The environmental authority that has knowledge of an environmental violation is obliged to promote immediate verification, through appropriate administrative process, under penalty of co-responsibility.

§ 4 - The environmental violations are verified through appropriate administrative proceedings, by ensuring the right of ample defense and contradictory plea, observing the provisions of this Law.

Art. 71 The administrative proceedings to verify an environmental violation must observe the following deadlines:

I - twenty days for the transgressor to present his defense or to dispute the register of the violation, counted from the date of his knowledge of the register;

II - thirty days for the competent authority to judge the register of the violation, counted from the date of its register, with or without the defense or dispute;

III - twenty days for the transgressor to appeal the condemnation before the SISNAMA's (Brazilian national environment system), or before the Port Authorities of the Ministry of the Navy, according to the type of register enacted;

IV - five days to pay the fine, counted from the date of receipt of the notification.

Art. 72 Administrative violations are punished through the following sanctions, according to that provided for in Article 6:

I - warning;

II - simple fine;

III - daily fine;

IV - seizure of animals, fauna and flora products and byproducts, tools, supplies, equipment or vehicles of any nature used in the violation;

V - destruction of the product or rendering it useless;

VI - suspension of sale and manufacture of the product;

VII - embargo of the construction or activity;

VIII -demolition of construction;

IX - partial or total suspension of activities;

X - (VETOED);

XI - circumscription of rights.

§ 1 - If the transgressor perpetrates, simultaneously, two or more violations, he will receive cumulative sanctions;

§ 2 - The warning will be applied due to non-compliance of the provisions of this Law and of legislation in force, or of regulatory norms, without prejudice of the other sanctions foreseen in this article.

§ 3 - The simple fine will be applied whenever the agent, by negligence or fraud:

I - although warned of irregularities, does not correct them in the period established by the competent SISNAMA agency or by the Port Authorities of the Ministry of the Navy;

II - hinders monitoring by the SISNAMA agencies or by the Port Authorities of the Ministry of the Navy.

§ 4 - The simple fine can be converted into services for the preservation, improvement or recovery of environmental quality.

§ 6 - Seizure and the destruction mentioned in the items IV and V of the chapeau shall observe that provided for in Article 25 of this Law.

§ 7 - The sanctions mentioned in the items VI through IX of the chapeau shall be applied whenever the product, work, activity or establishment are not complying with legal or regulatory prescriptions.

§ 8 - The sanctions that circumscribe rights are:

I - Suspension of the register, license or authorization;

II - cancellation of the register, license or authorization;

III - loss or restriction of fiscal incentives and benefits;

IV - loss or suspension of participation in lines of credit at official financial institutions;

V - prohibition from undertaking contracts with the public administration for a period of up to three years.

Art. 73 The values collected through payment of fines due environmental violation shall revert to the National Environment Fund, created by the Law No. 78,797, dated July 10, 1989, the Naval Fund, created by the Decree No. 20,923, dated January 8, 1932, state or local environment funds, or similar funds, according to that determined by the collection agency.

Art. 74 The fine shall be based on the unit, hectare, cubic meter, kilogram, or other pertinent measure, according to the legal object damaged.

Art. 75 The value of the fines dealt with in this Chapter, shall be established at the regulation of this Law, and periodically adjusted, based on the established indices of the relevant legislation, where the minimum will be R$ 50.00 (fifty Reals) and the maximum R$ 50,000,000.00 (fifty million Reals). (1 US$ = 1.09 R$ )

Art. 76. Payment of fines imposed by state and local governments, the Federal District or Territories substitutes federal fines, if the incidence is the same.

CHAPTER VII

INTERNATIONAL COOPERATION TO PRESERVE THE ENVIRONMENT

Art. 77. Safeguarding national sovereignty, public order, appropriate social customs and habits, the Brazilian Government will provide, with respect to the environment, the necessary cooperation to another country, without costs, when it is requested to:

I - produce evidence;

II - examine objects and places

III - provide information on people and things;

IV - ensure temporary presence of arrested person, whose declarations may be relevant to the decision of a cause;

V - provide other forms of assistance permitted by legislation in force or by treaties to which Brazil is party.

§ 1. The request dealt with in this Article, will be directed to the Ministry of Justice, which will forward it, when necessary, to the competent legal organ for decision, or forward it to the authority capable of meeting it.

§ 2. The request should contain:

I - name and qualification of requesting authority;

II - object and reason for its formulation;

III - a summarized description of the procedure underway in the requesting country;

IV - specification of the requested assistance;

V - documentation essential for its clarification, when appropriate.

Art. 78 To achieve the objectives contained in this Law and in particular for reciprocity of international cooperation, a communication system should be employed in order to facilitate the rapid and secure exchange of information with organs from other countries.

CHAPTER VIII

FINAL PROVISIONS

Art. 79 Subsidiary to this Law, the provisions of the Penal Code and the Criminal Proceedings Code are to be applied.

Art. 80 The Executive shall regulate this Law within a period of ninety days, from the day of its publication.

Art. 81 (VETOED).

Art. 82 All and any provisions to the contrary are hereby revoked.

FERNANDO HENRIQUE CARDOSO - Brazilian President

Gustavo Krause - Minister for the Environment

Law No. 9,605, dated February 12, 1998, published in the Official Gazette of Feb. 13, 1998, section 1, p. 1.